Is it illegal to spy on Indonesian officials, as president Susilo Bambang Yudhoyono claims?

Updated
Tue Dec 10 10:37:52 EST 2013

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Indonesian president Susilo Bambang Yudhoyono says it is illegal to tap the phones of officials of other countries under Indonesian, Australian and international law. ABC Fact Check finds his claim goes too far.

AFP: Adek Berry

It is no secret that countries spy on each other. As Prime Minister Tony Abbott told Parliament on November 19, "every government gathers information and... every government knows that every other government gathers information". But while governments tend to accept this reality, it does not mean spying is legal.

A diplomatic row between Indonesia and Australia arose from the publication of six PowerPoint slides that apparently detail attempts by Australian intelligence to tap the mobile phones of people in the Indonesian leadership, including president Susilo Bambang Yudhoyono and his wife Kristiani Herawati.

In a television address to the Indonesian nation on November 20, Mr Yudhoyono said: "I view this issue as a serious one... I don't think that Indonesian law, Australian law or international law allows the tapping of officials of other countries."

If the spying did occur as reported, would Australia's actions have been illegal under Australian, Indonesian and international law?

The claim: Susilo Bambang Yudhoyono says it is illegal to tap the phones of officials of other countries under Indonesian, Australian and international law.

Who does Australia's spying?

Covert surveillance on behalf of Australia is conducted by what is officially known as the Australian Intelligence Community, which includes organisations that gather intelligence and those that interpret it and provide reports to the Government.

Those organisations more likely to be involved in phone tapping are the Australian Security Intelligence Organisation (ASIO), the Australian Secret Intelligence Service (ASIS) and the Australian Signals Directorate (ASD, formerly known as the Defence Signals Directorate). The leaked PowerPoint slides refer to the Defence Signals Directorate, but it may not have been the only agency involved.

ASIO and ASIS report directly to the Government (ASIO to the Attorney-General, ASIS to the minister for Foreign Affairs), whereas ASD reports to the chief of the Defence Force and secretary of the Department of Defence.

ASIO focuses on domestic intelligence operations, obtaining and evaluating "intelligence relevant to security" and communicating it to the Government. It also obtains "foreign intelligence" from Australian shores.

The functions of ASIS and ASD are set out in the Intelligence Services Act 2001. ASIS deals with intelligence gathering outside Australia. Its functions are to obtain "in accordance with the Government's requirements, intelligence about the capabilities, intentions or activities of people or organisations outside Australia".

ASD has the same function of obtaining intelligence about the capabilities, intentions or activities of people or organisations outside Australia, with the added definition that this intelligence is "in the form of electromagnetic energy, whether guided or unguided or both, or in the form of electrical, magnetic or acoustic energy". This type of information is called "signals intelligence", which the United States National Security Agency describes as "intelligence derived from electronic signals and systems used by foreign targets, such as communications systems, radars, and weapons systems".

Spying under Australian law

Australian law allows all three intelligence organisations quite broad powers to undertake surveillance and gather intelligence. Most of the restrictions that are in place are designed to protect the privacy of Australians.

The limits are strongest in relation to intelligence-gathering in Australia. This affects ASIO more than the other agencies due to its domestic focus. It needs to obtain a warrant from the responsible minister before it can search premises or undertake surveillance in Australia (such as the use of listening devices, interception of postal articles or "the interception... of communications made to or from [a] telecommunications service").

Fewer restrictions apply to the overseas operations of ASIS and ASD. Section 11(1) of the Intelligence Services Act says that they can operate "only in the interests of Australia's national security, Australia's foreign relations or Australia's national economic well-being and only to the extent that those matters are affected by the capabilities, intentions or activities of people or organisations outside of Australia". Similarly, they are only allowed to undertake activities "necessary for the proper performance of its functions". Authorisation from the minister is required before an agency can undertake activities that would obtain information on an Australian or would have a direct effect on an Australian. The ASD must also comply with privacy rules set by the minister when dealing with information about Australians.

However, on the whole, Australian law does permit ASIS and ASD to tap the phones of officials of other countries if it is in the interests of Australia to do so.

Dr Patrick Walsh, a senior lecturer in intelligence and security studies at Charles Sturt University and former employee of the Office of National Assessments, has told ABC Fact Check ASD's activities are conducted in alignment with the "national intelligence collection priorities" set by the government of the day. Dr Walsh says "there are checks and balances in place at the ASD" and the organisation "operates within the law and in accordance with the relevant legislation".

If the spying took place as alleged in August 2009, it was open for the DSD to form the view that the spying was in the national interest given that it occurred shortly after bombings of the Jakarta Ritz-Carlton and Marriott hotels. Three of the seven people killed in those attacks were Australian nationals and Australians were among the more than 50 people injured.

Spying under Indonesian law

Indonesia, like Australia, only allows the surveillance of its citizens in certain circumstances. Consequently, wiretapping on Indonesian territory by agents of foreign governments such as Australia is almost certainly illegal under local laws.

Tapping can be carried out legally in Indonesia in certain circumstances. Herlambang Wiratramen, a PhD researcher at the Van Vollenhoven Institute of Law at Universiteit Leiden in the Netherlands, has told Fact Check that one such example is in relation to the investigation of corruption by Indonesia's anti-corruption commission (the KPK).

However, Indonesian law places limits on who and why people can lawfully undertake wiretapping.

"Indonesia has laws protecting the privacy of individuals," Dr Melissa Crouch, a research fellow at the Centre for Asian Legal Studies at the National University of Singapore, told Fact Check. "Covert surveillance of people can only be undertaken by authorised law enforcement agencies and even then only under limited circumstances."

Dr Crouch pointed to the Indonesian Law No 11/2008 relating to electronic information and transactions, and the Indonesian Intelligence Law No 17/2011, which allows the Indonesian Intelligence Service (known as BIN) the power to wiretap individuals only in relation to matters such as 'national security' or 'terrorism'. According to both Dr Crouch and Mr Wiratramen, it would be a criminal offence to wiretap in other circumstances. Dr Crouch says "given the very limited conditions under which actions such as wiretapping are permitted in Indonesia, it is highly questionable that such actions by foreign governments would be permitted under Indonesian law".

Spying under international law

International law is made up of several different sources including conventions and treaties, practices followed by states (known as customary law) and decisions of international courts such as the International Court of Justice in The Hague.

Fact Check could not find any treaties or conventions that specifically outlaw spying or espionage.

However, that is not the end of the story. A key principle of international law is respect for "state sovereignty". Associate Professor Craig Forcese, vice dean of the Faculty of Law at the University of Ottawa, has written extensively on national security law and takes the view that espionage may violate the sovereignty of the country being spied on if the actions are illegal under that country's laws.

He says state sovereignty is a state's "right to exercise jurisdiction over its territory and over all persons and things therein, subject to the immunities recognised by international law".

He suggests that "running a covert wiretap program from another state's territory in violation of domestic privacy laws is no different from snatching someone from the streets of that state in violation of its kidnapping laws".

It is unclear whether it is alleged that spying against Indonesia took place in Indonesia or from Australia. However, Associate Professor Forcese says "there would still be a breach to Indonesia's sovereignty if Australia, acting on Australian territory, somehow collected the intercept via some tool or technique on Indonesian territory".

Countries also have an obligation under international law not "to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other state". Professor Ben Saul of the University of Sydney told Fact Check he believes that spying is a breach of the non-intervention principle.

By contrast, Dr Alison Pert, also from of the University of Sydney, suggests that spying may not be prohibited by customary international law, given that "states are acting in precisely the opposite way" by regularly spying on each other.

Given there are no treaties addressing the issue and that spying remains a common practice, the international law position cannot be described as settled. However, the Indonesian president's view that it is illegal under international law is certainly a valid one, supported by expert opinion.

What about spying from the Australian embassy?

If any wiretapping was coordinated from within the Australian embassy in Jakarta, it is unlikely to have any additional legal protection. It is true that the 1961 Vienna Convention on Diplomatic Relations provides for wide-ranging privileges for a country's embassy and diplomats, with diplomats enjoying "immunity from the criminal jurisdiction of the receiving states".

However, diplomats still have a duty to "respect the laws and regulations of the receiving state" and "not to interfere in the internal affairs of that state", and an embassy should not be used in a manner incompatible with its proper functions or general international law. This is noted by Professor Forcese, who says that "spying by diplomats may be constrained by international law... because the type of spying in question falls outside the limits of the diplomatic function". Similarly, Professor Saul says spying is "a violation of the obligation... to respect local law and not to a misuse the diplomatic status of the embassy".

The verdict

Spying may be commonly practised, but the legal situation is not straightforward. As Associate Professor Forcese told Fact Check, "the international community has been content with artful ambiguity".

For this reason, Mr Yudhoyono goes too far when he describes spying's legal status in absolute terms. He is incorrect about the Australian law - spying on foreign officials is allowed under Australian law in a wide range of circumstances. His position on international law is more arguable and is shared by a number of legal experts. He is right about Indonesian law.